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Diversity on bench ‘long way’ off

May 28, 2012|Written By Kendyl Sebesta

Ontario still has “a long way to go” if it hopes to create a more culturally diverse bench in the next decade, says the head of the committee responsible for processing applications to the province’s judiciary.

‘We’ve found many minorities play important roles in their community and likely feel obligated to stay in that role,’ says Hanny Hassan. Photo: Kendyl Sebesta

Hanny Hassan, chairman of the Ontario judicial appointments advisory committee, said while more people from visible minority groups have become judges over the last two decades, political patronage and cultural stereotypes still create barriers.

“We’ve made some progress compared to 20 years ago but we still aren’t seeing a significant number of minorities applying to become judges,” said Hassan.

“In fact, we haven’t had a significant change in the number of visible minority and disabled applicants in the past five years.”

Currently, more than half of Ontario’s judges are white males, according to statistics provided by the Law Society of Upper Canada. By comparison, 11 per cent of all lawyers in Ontario come from racialized communities.

The topic of judicial diversity also came up recently in media reports on appointments to the Federal Court. Critics pointed to a lack of diversity as serious problems at the Federal Court.

Hassan, who made the comments during a panel discussion on judicial diversity at the law society on May 17, said that although the advisory committee encourages a broad range of applicants to apply to become judges, many lawyers who are from visible minority groups don’t apply because they feel they have a duty to remain in their communities or worry they’ll be unsuccessful because of their race or gender.

“We’ve found many minorities play important roles in their community and likely feel obligated to stay in that role,” said Hassan.

“It’s important because it creates a significant gap in the number of qualified applicants that could become members of the bench.

That being said, we also need to make sure we aren’t just creating a list of applicants from different cultural backgrounds that the [attorney general] can play politics with.”

Sonia Lawrence, an associate professor at Osgoode Hall Law School and a member of the panel, said the lack of diversity is a problem.

“When we think of judges currently, we probably have an image of a judge in our heads of a white man in a pinstripe suit, but should that be the image that we have? A lack of different voices and perspectives on the bench creates an issue of legitimacy when it comes to those being judged.

They want to see their beliefs and cultures reflected in the justice they receive. They don’t want shallow representation only.”

According to Hassan, the advisory committee must reflect the diversity of Ontario’s population. The attorney general appoints seven of its lay members with an additional two appointed by the chief justice of the Ontario Court of Justice.

One is a member of the Ontario Judicial Council and three are lawyers appointed by the law society, the Ontario Bar Association, and the County & District Law Presidents’ Association.

There’s no requirement for the committee to recommend a specific number of diverse individuals for judicial positions, however.

Amer Mushtaq, a human rights lawyer at Mushtaq Law who attended the discussion, says it’s important to have a selection process that ensures diverse representation.

“It’s very important that the experiences of diverse judges are on par with the experiences of those who are currently on the bench,” says Mushtaq.

“For example, aboriginal people have a very different way of penalizing people than other cultures. If the judge was aboriginal as well, he would have a different and perhaps more effective way of imposing a penalty on an aboriginal person than another judge who may not understand aboriginal culture.”

But Deebshikha Dutt, an articling student in Toronto who attended the discussion, says while the event was important, race shouldn’t drive the judicial application process.

“It’s good to know that there is an understanding about the need for diversity on the bench and that there is faith in the system that it can be reached,” says Dutt.

“At the same time, I don’t think race should subjectively make a difference in who is selected to become a judge or affect their judgment solely. It shouldn’t matter if you’re black or white or Asian. What you know and how well you’ll perform should matter.”

But Ontario Court Justice Manjusha Pawagi, another panellist at the event, said judicial appointments shouldn’t come down to a debate between merit and diversity.

“Diversity is just one aspect of a broader picture of a person’s merits,” said Pawagi. “I think it’s important to let people know that they can come from nowhere and still become a judge.

At the same time, white is also an ethnicity, too, and we can’t assume their perspectives won’t be different from person to person either.”

Ontario Court of Appeal Justice Russell Juriansz, who attended the discussion briefly, echoed Pawagi’s sentiments. He noted that while many white judges have made progressive decisions in court, room still exists for diversity on the bench.

“All Canadians need to have a sense of belonging in Canadian society,” he said. “Judges are an important part of that. Who is to say having me as a judge isn’t positive?”

Another panellist, Ontario Court Justice Shaun Nakatsuru, noted that having a diverse bench is particularly important for racialized communities.

“At the end of the day, the community wants to respect the justice system and seeing a part of themselves in it is an important part of that,” he said. “It allows them to say, ‘I can belong as an individual in this justice system.’”

Joga Chahal, president of the Canadian Association of South Asian Lawyers, says diversity on the bench also plays an important role for those in the community who look for role models.

“I think it’s important that the bench be reflective of the community it serves for a couple of reasons,” says Chahal.

“Firstly, for people who come to court looking for justice, that includes the different perspectives of their communities in the decisions they receive. Also, to allow people like me to aspire to be judges themselves.”

I can understand the need for diversity on the bench, however, this is not something that should be forced on the system. If there are not people of various ethnicities demonstrating interest in pursuing this type of appointment, then why push the subject. One must also ensure that this is not a step towards a push for alternative "courts" such as "Sharia Law" to begin to take effect; in our infinite tolerance we can not sacrifice ourselves for everyone. There are only two official languages, and there is only one set of laws that should be applied to all citizens equally and without prejudice. Forcing the bench to push for diversity will result in similar outcomes to the "Affirmative Action" movement of the 80's resulting in tokenism. It's be diverse; but let's be diverse and promote equality the correct way, by ensuring that proper hiring practices are in place and creating an environment where everyone is welcome - not just minorities.

The SCC always follows a formula of regional representation regarding the choosing of justices who are francophones, western, eastern, Ontario and Quebec judges. Regional quotas at the SCC level have long been the norm.

I think that the most interesting comment made was that "many minorities play important roles in their community and and likely feel obligated to stay in that role." Perhaps we need to examine the boundaries of judicial participation in charitable and community work so as to facilitate a dual role and encourage applicants from minority communities who won't feel that they may be abandoning their responsibilities.

There is no simple solution to this problem. The ideal is to have all the minorities represented, but it is not realistic. The question is how far does one need to go. A quota system is not the answer, since it can lead to a ridiculous proportionment of appointments. The most important criteria for a appointment to the bench must be a lawyer's ability. (Sometimes a think a psychological assessment may also be useful!)Experience may come into play, but there are also people who are fast learners. It is unfortunate that politics play such a big role in the appointment process. I just look at South Africa, where I used to practice. There some of the brightest legal minds there have been ignored during the judicial appointment process, just because they are white males. It may be better to provide sensitivity training/cross cultural training to judges in Canada.

And to do that we'd have to start by not assuming that the colour of someone's skin, their gender, or anything else about their appearance has anything to do with competence or qualifications. Sadly, that is not the world we live in.

For readers interested in a perspective of why there is "No need for forced diversity on the bench", I encourage you to read the National Post article written by Canadian Constitution Foundation Litigation Director Karen Selick: http://www.canadianconstitutionfoundation.ca/article.php/316#.T8PikXjK021

If half of judges in Ontario are white males, what percentage of lawyers are white males? What percentage of white males applying to become judges are accepted? What percentage of non-white males applying to be judges are accepted. Telling us that 11% of lawyers in Ontario come from "racialized" communities tells us very little if anything.

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